FCC Votes on New Open Internet Rules

By David L. Cohen
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Feb 26, 2015

Today, the FCC voted 3-2 to adopt new Open Internet rules – rules that we support and agree should be put in place as legally enforceable by the FCC. Unfortunately, the FCC also decided to reclassify broadband as a telecommunications service under Title II of the Communications Act of 1934. We are disappointed the Commission chose this route, which is certain to lead to years of litigation and regulatory uncertainty and may greatly harm investment and innovation, when the use of Section 706 alone would have provided a much more certain and legally sustainable path.

We fully embrace the open Internet principles that have been laid out by President Obama and Chairman Wheeler and that now have been adopted by the FCC. We just don’t believe statutory provisions designed for the telephone industry and adopted when Franklin D. Roosevelt was president should be stretched to govern the 21st century Internet.

The astonishing success of the Internet has resulted from the combination of infrastructure and applications investment – along with light touch regulation that started two decades ago under the Clinton Administration. You can’t have millions of videos streaming every hour on YouTube, hundreds of millions of tweets, or billions of Facebook updates every day, without the broadband infrastructure investment to make that possible. Comcast alone has invested tens of billions of dollars in our network, increased broadband speeds 13 times in 13 years, and now offers speeds up to 505 Mbps down.

We know that our business has grown and thrived because consumers want access to everything that the Internet makes possible, and we want to meet that demand. This is why we have no issue with the principles of transparency and the no blocking, no throttling, and no fast lanes rules incorporated in today’s FCC Order. But we remain deeply concerned that implementing those principles through Title II will do more harm to the vibrant Internet ecosystem than good.

While we don’t agree that using Title II is necessary, we are encouraged that the Commission has apparently forborne from numerous statutory provisions and cumbersome regulations, which will alleviate some of the most troubling aspects of using Title II. But we have not yet read the Order as adopted by the Commission, and we are concerned with what some have reported as incomplete legal forbearance in important areas. So we will need to await release of the Order so we – and everyone else – can review completely all of the actions taken through today’s important vote. Specifically, after seeing the Order, we’ll have to engage in additional internal scrutiny on what our investment plans with respect to broadband will be going forward.

After today, the only "certainty" in the Open Internet space is that we all face inevitable litigation and years of regulatory uncertainty challenging an Order that puts in place rules that most of us agree with. We believe that the best way to avoid this would be for Congress to act. We are confident this can be done in a bi-partisan manner with a consensus approach that accomplishes the common goals of stakeholders on all sides of the open Internet debate without the unnecessary focus on legal jurisdiction and the unnecessary regulatory overhang from 80 year-old language and provisions that were never intended to be applied to the Internet.